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Further Reading

A judge has allowed a lawsuit to proceed against the creators of Oh, the Places You’ll Boldly Go!—a nearly page-for-page remix of the Dr. Seuss classic Oh, the Places You’ll Go! and Star Trek. This decision reverses an earlier ruling.

After receiving a new court filing, US District Judge Janis Sammartino found that ComicMix, the company behind the new work, could not so easily have the case dismissed.

“Thus, after again weighing the fair use factors, the Court finds Defendants’ fair use defense fails as a matter of law,” Judge Sammartino wrote in a December 7 order.

The new book originally raised tens of thousands of dollars on Kickstarter before being pulled down in October 2016. The spat quickly resulted in this lawsuit, Dr. Seuss Enterprises v. ComicMix LLC, which was filed in federal court in San Diego in November 2016. Dr. Seuss Enterprises (DSE) represents the works of the now-deceased but still iconic children’s book author, Theodor Geisel.

DSE argued that ComicMix’s new mashup infringed on its intellectual property rights, while ComicMix argued that it was allowed under the fair use doctrine of American copyright law. That notion allows for certain remixes to be created and sold under certain conditions without violating the original copyright.

ComicMix filed a motion to dismiss the case, and, by June 2017, Judge Sammartino ruled in favor of ComicMix but allowed DSE to file again.

“Applying the fair use factors in the manner Plaintiff outlines would almost always preclude a finding of fair use under these circumstances,” she wrote in a June 2017 order. “However, if fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed.”

Weeks later, DSE filed an amended complaint, clearly outlining other authorized new versions like There’s No Place Like Space! and attractions at theme parks, among other locales. After hearing further argument on the case, Judge Sammartino found that not only was ComicMix in possible violation of DSE’s copyright of the work, but that it also may run afoul of DSE’s trademark of the title and the artistic style of that title.

“Defendants not only use the words [‘Oh, the Places You’ll Go!’] in the title of Boldly but also use the exact font used by Plaintiff,” the judge continued. “The look of the lettering is unquestionably identical on both books, down to the shape of the exclamation point.”

On those grounds, ComicMix could not have the case dismissed after all.

All’s fair in love and use

Further Reading

Ars contacted several legal experts who argued that all may not be lost for ComicMix just yet.

Barton Beebe, a law professor at New York University and expert in IP law, emailed Ars to say that, while it makes sense that the lawsuit was not dismissed at this stage, the facts seem to be in ComicMix’s favor.

“A central question under copyright fair use is what impact the defendant’s conduct has on the potential market for or value of the copyrighted work,” he wrote.

Professor Beebe continued:

This potential market can include the market for licensing derivatives from the copyrighted work, like sequels or translations. So we ask if ComicMix is doing something without authorization and for free that people would or should typically pay Dr. Seuss Enterprises to be able to do—and if DSE says no, then people can’t do it. (If you think this is circular, you’re right).

Similarly, Jennifer Rothman, a law professor at Loyola Law School, agreed and emailed: “Dr. Seuss likely would not have given permission for this use... considering such possible licensing revenue could thwart the fair use defenses in virtually any instance where licensing is possible.”

However, other scholars pointed out that this case is similar to a previous case that also involves DSE, known as Dr. Seuss Enterprises v. Penguin Books. In that 1997 ruling by the 9th US Circuit Court of Appeals, the court found that a publisher could not simply just use the vehicle of The Cat in the Hat to rehash the OJ Simpson murder trial in a comical way without parodying the copyrighted work itself.

“The defendants asserted in their Kickstarter campaign that their use of the Dr. Seuss story was intended to be an homage, which is really the opposite of ridicule,” Annemarie Bridy, a law professor at the University of Idaho, emailed.

“That’s not to say that the defendants’ mashup can’t be fair use, but their lack of a critical purpose does undermine both their characterization of their work as a parody and their reliance on the Supreme Court’s parody fair use precedent.”

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Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar

So we ask if ComicMix is doing something without authorization and for free that people would or should typically pay Dr. Seuss Enterprises to be able to do—and if DSE says no, then people can’t do it. (If you think this is circular, you’re right).

I read this sentence three times now, and I still don't know what it is trying to convey. I'm not even convinced it is grammatically correct.

Sounds to me like the licensing option would have been the correct approach here. Too bad the authors didn't pursue that first.

I'm not sure they could've gotten permission. The Seuss estate is pretty notorious for being protective of their IP. They've licensed it to a number of entities... that can afford up front payments and have the market power to generate substantial royalties. Random dudes on Kickstarter doesn't fit that profile very well.

That aside, since this is a mashup of about 50% Seuss and 50% Star Trek IP, relying on a license would seem to concede they need a license for the Star Trek IP as well. And there's no way they were getting that even if they asked. CBS is hostile toward fan IP.

So we ask if ComicMix is doing something without authorization and for free that people would or should typically pay Dr. Seuss Enterprises to be able to do—and if DSE says no, then people can’t do it. (If you think this is circular, you’re right).

I read this sentence three times now, and I still don't know what it is trying to convey. I'm not even convinced it is grammatically correct.

Taken together with the earlier quotes from the same professor, the whole quote reads:

Quote:

A central question under copyright fair use is what impact the defendant’s conduct has on the potential market for or value of the copyrighted work.

[...]

This potential market can include the market for licensing derivatives from the copyrighted work, like sequels or translations. So we ask if ComicMix is doing something without authorization and for free that people would or should typically pay Dr. Seuss Enterprises to be able to do—and if DSE says no, then people can’t do it. (If you think this is circular, you’re right).

The "so we ask" clearly references the prior sentence, effectively "We ask because..." The whole thing is awkwardly worded, but here's how to parse it:

(2) One prong of the fair use doctrine analysis asks whether the "fair use" work is harming the market for the original work.

(2) The market potentially harmed includes the market for derivatives or sequels to the original.

(3) Because of the market harm prong, we end up asking if ComicMix is doing something that harms DSE's market for licenses to create derivative books.

(4) But if DSE doesn't grant the license, nobody will create a derivative work that is harmed by competition with this work.

(5) 1-4 is circular logic. By factoring the right to grant discretionary licenses into fair use, you allow an entity that isn't licensing works for a new market to shut down new creative works in that market because they compete with works that don't exist because they won't license them.

I’m glad that parody is a protected form of expression and all, but I find it a bit disconcerting that it’s easier to be critical of something than to be a fan of it. Of course, a shorter copyright term would mitigate that, but still.

If i hadn't read the caption under the picture i would of thought it was a DSE book.

I could see a few panels or even a comic strip would fall under fair use, but a whole book? No.

This is the main problem. I'm a huge fan of fair use, but they're in real legal danger here because of how much they borrowed, which is a factor in the fair use analysis.

A "whole book" still could have been fair use if the borrowed elements were only lightly used throughout. But every part of every page was made to mimic the style of the actual DSE books, from cover to cover. I'm not saying it's not fair use, but I am saying it makes this a much harder legal question. These are the hard cases that take a lot of legal time and money to resolve.

I’m glad that parody is a protected form of expression and all, but I find it a bit disconcerting that it’s easier to be critical of something than to be a fan of it. Of course, a shorter copyright term would mitigate that, but still.

Being a fan doesn't require creating your own original versions of the work, though.

The general purpose of "fair use" is to balance three competing goals: (1) incentivizing the creation of new works by guaranteeing the ability to market your own work without others profiting off your labor, (2) incentivizing the creation of new works that may be inspired by existing works, but are mostly the labor of the new creator and not the original work creator, and (3) permitting free speech including criticism of commercial works.

#1 is why CBS gets to own a copyright in Star Trek. It costs a lot of money to produce new Star Trek series, and they'd have less incentive to do so if they had to compete with a bunch of other "Star Trek" series created by other people. (Imagine if every major TV/cable network put out a Star Trek series next year. Would you watch them all? Be honest. You'd get Star Trek fatigue at some point, and you only have so much spare time.)

#2 is why The Orville exists without permission from CBS. It's clearly based on and inspired by Star Trek, but Seth MacFarlane and his production team put in a lot of time to create a whole original universe with original backstory, characters, species, ships, uniforms, music, etc. We want people to be able to create and sell new things that are inspired by old things, and we want them to have the same commercial incentive (see #1) the original creator had.

#3 is why critics can use quotes, stills and short clips of a TV series without seeking permission. The First Amendment guarantees a right to free speech, and there must be a balance in any federal law between free speech interests and other interests. Requiring permission to speak critically would stifle critical speech under laws passed by Congress. That's a no-no.

Where does the fan fit in this? Where is the fan harmed? Most fans don't try to commercially compete with the work they're a fan of. Being a fan doesn't require creating or selling your own Star Trek episodes. You say it's "disconcerting" that it's "easier" to be a critic than a fan of something, but easier in what way? I can buy Star Trek episodes on Blu-Ray, licensed Starfleet uniforms, copies of original soundtracks, and enjoy them all to my heart's content. How is "being a fan" impacted by the fact that I can't sell my own self-made copies of those things?

I’m glad that parody is a protected form of expression and all, but I find it a bit disconcerting that it’s easier to be critical of something than to be a fan of it. Of course, a shorter copyright term would mitigate that, but still.

Because criticism should always be protected. But being a fan of something should not give you an automatic right to use the property however you want to, as axanar found out.

If copyright law were really about "promoting the progress of science and useful arts", it wouldn't last so damn long that decades later, fans can't remix it in creative ways.

A classic case of regulatory capture.. Sonny Bono got elected by Hollywood just so Mickey Mouse would remain under copyright.

This is hyperbolic and the kind of statement that undermines real criticism. Bono had Hollywood backers, sure, but as a musician he also personally cared about copyright law himself. It's not like Disney had to buy or coerce him. And he was still elected by voters and just one member of Congress.

A short copyright has its place but these absurdly long extensions are nothing but rent seeking.

Rent-seeking as an economic concept doesn't apply well to intellectual property at all. Intellectual property rights exist for the purpose of allowing a person to profit in the present from their past labor. It's a market where you cannot fully profit from your labor at the time it's created, and where any labor in churning and selling copies is far less valuable than the labor of creation. Without substantial copyright terms, all you're doing is transferring profit from the original creator to whoever owns a copy machine.

People have greater incentive to undertake the labor of original creation if their ability to profit from it over time is assured. And this doesn't interfere with the ability to create new original works. The duration of copyright on Mickey Mouse doesn't prevent animation studios from creating cartoons. If anything, society gains from the pressure to continue creating original works. Would The Orville exist if Seth MacFarlane could just go off and create his own Star Trek series? Would Babylon 5 exist? Wouldn't you rather live in a society where people are encouraged to create original works and rewarded for doing so?

There has to be a balancing act (CBS shouldn't be able to own "space epic dramas" or shut down shows like The Orville), but people who hate on copyright law often don't understand it or what useful role it serves.

Sounds to me like the licensing option would have been the correct approach here. Too bad the authors didn't pursue that first.

I'm not sure they could've gotten permission. The Seuss estate is pretty notorious for being protective of their IP. They've licensed it to a number of entities... that can afford up front payments and have the market power to generate substantial royalties. Random dudes on Kickstarter doesn't fit that profile very well.

That aside, since this is a mashup of about 50% Seuss and 50% Star Trek IP, relying on a license would seem to concede they need a license for the Star Trek IP as well. And there's no way they were getting that even if they asked. CBS is hostile toward fan IP.

Wait what? CBS is hostile towards fan IP? Then how the hell does Renegades exist, or even the new fan made YouTube series that continues the original 5 year mission? CBS isn’t hostile to fan IP, they are hostile towards people using it to make themselves money and bootstrap their business with it, especially when that business is a competitor. That is what is happening in this case and what happened in the Anaxar case. These aren’t fans making new IP, and while I don’t know about DSE I highly doubt CBS would have had a problem with it if they had just published it to the internet as a free to download PDF given their previous response on fan creations. There is a ton of Star Trek fan made IP on the internet and CBS has stood strongly behind them in support, so long as it isn’t used to enrich the creators of the new IP.

It is easy to say ‘these are just fans making this’ if that was true they would have made it anyways without the Kickstarter, that is kind of the definition of a fan. Instead they went and tried to make money off of their fandom which is where the problem lies.

(5) 1-4 is circular logic. By factoring the right to grant discretionary licenses into fair use, you allow an entity that isn't licensing works for a new market to shut down new creative works in that market because they compete with works that don't exist because they won't license them.

However, doesn't the right to issue licenses include the right not to issue them? E.g., Bill Watterson is known for refusing any kind of licensing deals for his Calvin & Hobbes characters, even though there would clearly be a market for mugs, t-shirts,etc. (As evidenced by the unlicensed outfits popping upon facebook every once in a while.) Unlike with trademarks,the mere fact that he choses not to exercise his rights doesn't allow anyone else to do so, which is why those shops usually try and stay under the radar.

If i hadn't read the caption under the picture i would of thought it was a DSE book.

I could see a few panels or even a comic strip would fall under fair use, but a whole book? No.

This is the main problem. I'm a huge fan of fair use, but they're in real legal danger here because of how much they borrowed, which is a factor in the fair use analysis.

A "whole book" still could have been fair use if the borrowed elements were only lightly used throughout. But every part of every page was made to mimic the style of the actual DSE books, from cover to cover. I'm not saying it's not fair use, but I am saying it makes this a much harder legal question. These are the hard cases that take a lot of legal time and money to resolve.

Hell, look at the uniforms, this could easily be a lawsuit that CBS and/or Paramount/Viacom could jump on for copyright or trademark infringement.

The DSE amended complaint notes that CBS also sent the authors a cease and desist letter.

Agree, but the main problem is that they are undertaking this "fan" venture in exchange for money from the general public. There are plenty of fan-made works that are comprised of 100% this-or-that IP floating about that are either tolerated or encouraged because they do not compete in the marketplace with the copyrighted works they are derived from.

If i hadn't read the caption under the picture i would of thought it was a DSE book.

I could see a few panels or even a comic strip would fall under fair use, but a whole book? No.

This is the main problem. I'm a huge fan of fair use, but they're in real legal danger here because of how much they borrowed, which is a factor in the fair use analysis.

A "whole book" still could have been fair use if the borrowed elements were only lightly used throughout. But every part of every page was made to mimic the style of the actual DSE books, from cover to cover. I'm not saying it's not fair use, but I am saying it makes this a much harder legal question. These are the hard cases that take a lot of legal time and money to resolve.

Hell, look at the uniforms, this could easily be a lawsuit that CBS and/or Paramount/Viacom could jump on for copyright or trademark infringement.

The DSE amended complaint notes that CBS also sent the authors a cease and desist letter.

Agree, but the main problem is that they are undertaking this "fan" venture in exchange for money from the general public. There are plenty of fan-made works that are comprised of 100% this-or-that IP floating about that are either tolerated or encouraged because they do not compete in the marketplace with the copyrighted works they are derived from.

Yeah, this.

As an author (although hardly in the sales leagues of Seuss or CBS) I have a vested interest in copyright. I also have an interest in finding new readers, and encouraging fans.

My feeling (and I know some other writers feel the same way) is that it's not okay for somebody else to make money off of my IP unless I'm getting a (previously agreed to) piece of the action. But I don't have a problem with someone giving a few copies away, or writing fan-fic for their own amusement in my universe.

Sounds to me like the licensing option would have been the correct approach here. Too bad the authors didn't pursue that first.

I'm not sure they could've gotten permission. The Seuss estate is pretty notorious for being protective of their IP. They've licensed it to a number of entities... that can afford up front payments and have the market power to generate substantial royalties. Random dudes on Kickstarter doesn't fit that profile very well.

That aside, since this is a mashup of about 50% Seuss and 50% Star Trek IP, relying on a license would seem to concede they need a license for the Star Trek IP as well. And there's no way they were getting that even if they asked. CBS is hostile toward fan IP.

Wait what? CBS is hostile towards fan IP? Then how the hell does Renegades

Are you kidding? Renegades had to divorce itself from it's original Star Trek roots because of recent litigation. Star Trek continues only was able to continue because they managed to get a unique and special to them special dispensation of the new rules imposed by CBS.

I am rather skeptical on many recent claims of copyright holders. Just using similar art style and similarly-looking character should not be considered as copyright infringement. But this is the case when the claim of copyright-holder is due. The work in question has too much noticeable resemblance to original works and show little or not enough creativity to endow it independent copyright as secondary derivative work. Many consumer will mistake it as new work or licences work by the respective copyright holders, not parody or secondary work.

(5) 1-4 is circular logic. By factoring the right to grant discretionary licenses into fair use, you allow an entity that isn't licensing works for a new market to shut down new creative works in that market because they compete with works that don't exist because they won't license them.

However, doesn't the right to issue licenses include the right not to issue them? E.g., Bill Watterson is known for refusing any kind of licensing deals for his Calvin & Hobbes characters, even though there would clearly be a market for mugs, t-shirts,etc. (As evidenced by the unlicensed outfits popping upon facebook every once in a while.) Unlike with trademarks,the mere fact that he choses not to exercise his rights doesn't allow anyone else to do so, which is why those shops usually try and stay under the radar.

On the other hand, he can conveniently just disavow any such merchandise. He doesn't have to be a jerk and go after those products because everyone knows that ANY thing out there is unauthorized. They can't really harm the reputation of his trademarks and they can't deprive him of any income because he doesn't seek any.

The fact that he doesn't have any merchandising income also completely guts any resources with which he might be able to police such things. He probably doesn't have the means to be a jerk about the situation even if he wanted to.

He gets what he wants and he doesn't have to be bothered by what other people are doing.

So we ask if ComicMix is doing something without authorization and for free that people would or should typically pay Dr. Seuss Enterprises to be able to do—and if DSE says no, then people can’t do it. (If you think this is circular, you’re right).

I read this sentence three times now, and I still don't know what it is trying to convey. I'm not even convinced it is grammatically correct.

It's pretty rough construction. With the addition of some punctuation in the vicinity of "without authorization and for free that people would or should typically," like "without authorization (and for free) that people would (or should) typically," it becomes a bit easier (em-dashes or even commas would be appropriate too).

No modern sentence should be constructed in such a clause-y way and, if it's going to happen, then it should be punctuated appropriately.

Basically, the statement is saying that, if CM is doing something that DSE thinks that it should be payed for then CM is in violation. And the "circular" part is just pointing out that this is a silly thing to ask because DSE's claim will always be that CM should be paying.

Something that's not clear to me from the article - did ComicMix make entirely new art, or did they lift and alter pages from a Seuss book (or books)? If it's the former, I don't see how copyright could possibly be applicable - style isn't copyrightable. If it's the latter, then yeah, they're probably screwed.

Sounds to me like the licensing option would have been the correct approach here. Too bad the authors didn't pursue that first.

I'm not sure they could've gotten permission. The Seuss estate is pretty notorious for being protective of their IP. They've licensed it to a number of entities... that can afford up front payments and have the market power to generate substantial royalties. Random dudes on Kickstarter doesn't fit that profile very well.

That aside, since this is a mashup of about 50% Seuss and 50% Star Trek IP, relying on a license would seem to concede they need a license for the Star Trek IP as well. And there's no way they were getting that even if they asked. CBS is hostile toward fan IP.

Wait what? CBS is hostile towards fan IP? Then how the hell does Renegades

Are you kidding? Renegades had to divorce itself from it's original Star Trek roots because of recent litigation. Star Trek continues only was able to continue because they managed to get a unique and special to them special dispensation of the new rules imposed by CBS.

Uh yeah because they wanted to begin making money with it. I mean I don’t know about you but I would have problems with other people selling works based on my creation for profit without getting my share which is one of the things they were wanting to do. They were also wanting to make feature length productions. That’s stepping over the line from ‘fan’ to ‘business’.

Sounds to me like the licensing option would have been the correct approach here. Too bad the authors didn't pursue that first.

If it would have done them any good, they probably would have:

Quote:

“Dr. Seuss likely would not have given permission for this use... considering such possible licensing revenue could thwart the fair use defenses in virtually any instance where licensing is possible.”

So either way, I expect it was going to be litigated under fair use. I expect the traits that might eventually be ruled as infringement would have to be modified to be unique in an of themselves, but beyond that the mashup concept is usually thought to be fair use provided such things sufficiently depart from the original to become an original work itself.

In this case, I can see an argument that Dr. Seuss is infringing on Star Trek since the mashup isn't sufficiently different from the Dr. Seuss style to make it more obviously an original work independent of both origins.

What surprises me is that it's Dr. Seuss who's suing and not CBS/Paramount. They're usually a lot more anal about stuff like this. I figure the infringing parts will be altered and it'll be re-done as less of a copy of Dr. Seuss' styling, assuming they can afford to do that.

(5) 1-4 is circular logic. By factoring the right to grant discretionary licenses into fair use, you allow an entity that isn't licensing works for a new market to shut down new creative works in that market because they compete with works that don't exist because they won't license them.

However, doesn't the right to issue licenses include the right not to issue them? E.g., Bill Watterson is known for refusing any kind of licensing deals for his Calvin & Hobbes characters, even though there would clearly be a market for mugs, t-shirts,etc. (As evidenced by the unlicensed outfits popping upon facebook every once in a while.) Unlike with trademarks,the mere fact that he choses not to exercise his rights doesn't allow anyone else to do so, which is why those shops usually try and stay under the radar.

That's a valid point. I was translating someone else's writing there, so others could understand it, not giving my own view. I share your concern; it's hard to reconcile both sides.

I’m glad that parody is a protected form of expression and all, but I find it a bit disconcerting that it’s easier to be critical of something than to be a fan of it. Of course, a shorter copyright term would mitigate that, but still.

Being a fan doesn't require creating your own original versions of the work, though.

The general purpose of "fair use" is to balance three competing goals: (1) incentivizing the creation of new works by guaranteeing the ability to market your own work without others profiting off your labor, (2) incentivizing the creation of new works that may be inspired by existing works, but are mostly the labor of the new creator and not the original work creator, and (3) permitting free speech including criticism of commercial works.

#1 is why CBS gets to own a copyright in Star Trek. It costs a lot of money to produce new Star Trek series, and they'd have less incentive to do so if they had to compete with a bunch of other "Star Trek" series created by other people. (Imagine if every major TV/cable network put out a Star Trek series next year. Would you watch them all? Be honest. You'd get Star Trek fatigue at some point, and you only have so much spare time.)

#2 is why The Orville exists without permission from CBS. It's clearly based on and inspired by Star Trek, but Seth MacFarlane and his production team put in a lot of time to create a whole original universe with original backstory, characters, species, ships, uniforms, music, etc. We want people to be able to create and sell new things that are inspired by old things, and we want them to have the same commercial incentive (see #1) the original creator had.

#3 is why critics can use quotes, stills and short clips of a TV series without seeking permission. The First Amendment guarantees a right to free speech, and there must be a balance in any federal law between free speech interests and other interests. Requiring permission to speak critically would stifle critical speech under laws passed by Congress. That's a no-no.

Where does the fan fit in this? Where is the fan harmed? Most fans don't try to commercially compete with the work they're a fan of. Being a fan doesn't require creating or selling your own Star Trek episodes. You say it's "disconcerting" that it's "easier" to be a critic than a fan of something, but easier in what way? I can buy Star Trek episodes on Blu-Ray, licensed Starfleet uniforms, copies of original soundtracks, and enjoy them all to my heart's content. How is "being a fan" impacted by the fact that I can't sell my own self-made copies of those things?

It harms the fans, because they can't express their love for their beloved works, regardless of the commercial impact on the market value of the source content.

Everybody is so empathetic to the content creators' need to make a living. Art will proliferate regardless of whether there is money in it. So, the profit incentive is without merit. Art will not proliferate as well with draconian restrictions placed on its use to derive new art. We can all survive without copyright. The real damage is when art is stifled to nearly nothing.

I’m glad that parody is a protected form of expression and all, but I find it a bit disconcerting that it’s easier to be critical of something than to be a fan of it. Of course, a shorter copyright term would mitigate that, but still.

Being a fan doesn't require creating your own original versions of the work, though.

The general purpose of "fair use" is to balance three competing goals: (1) incentivizing the creation of new works by guaranteeing the ability to market your own work without others profiting off your labor, (2) incentivizing the creation of new works that may be inspired by existing works, but are mostly the labor of the new creator and not the original work creator, and (3) permitting free speech including criticism of commercial works.

#1 is why CBS gets to own a copyright in Star Trek. It costs a lot of money to produce new Star Trek series, and they'd have less incentive to do so if they had to compete with a bunch of other "Star Trek" series created by other people. (Imagine if every major TV/cable network put out a Star Trek series next year. Would you watch them all? Be honest. You'd get Star Trek fatigue at some point, and you only have so much spare time.)

#2 is why The Orville exists without permission from CBS. It's clearly based on and inspired by Star Trek, but Seth MacFarlane and his production team put in a lot of time to create a whole original universe with original backstory, characters, species, ships, uniforms, music, etc. We want people to be able to create and sell new things that are inspired by old things, and we want them to have the same commercial incentive (see #1) the original creator had.

#3 is why critics can use quotes, stills and short clips of a TV series without seeking permission. The First Amendment guarantees a right to free speech, and there must be a balance in any federal law between free speech interests and other interests. Requiring permission to speak critically would stifle critical speech under laws passed by Congress. That's a no-no.

Where does the fan fit in this? Where is the fan harmed? Most fans don't try to commercially compete with the work they're a fan of. Being a fan doesn't require creating or selling your own Star Trek episodes. You say it's "disconcerting" that it's "easier" to be a critic than a fan of something, but easier in what way? I can buy Star Trek episodes on Blu-Ray, licensed Starfleet uniforms, copies of original soundtracks, and enjoy them all to my heart's content. How is "being a fan" impacted by the fact that I can't sell my own self-made copies of those things?

It harms the fans, because they can't express their love for their beloved works, regardless of the commercial impact on the market value of the source content.

Everybody is so empathetic to the content creators' need to make a living. Art will proliferate regardless of whether there is money in it. So, the profit incentive is without merit. Art will not proliferate as well with draconian restrictions placed on its use to derive new art. We can all survive without copyright. The real damage is when art is stifled to nearly nothing.

They can express their love, they just can’t do so by creating feature length creations of said work that looks, at times, almost indistinguishable fromsaid previous work with the intent of enriching themselves or starting a new business for themselves with none of the proceeds going to the creator.

Look at it this way no one had issues with say Star Wars Troops, or the original Star Trek fanfic productions, or Diary of a Red Shirt. What they have problems with is someone starting a corporation and then using the ‘cover’ of ‘we’re just making a fan production here’ to enrich themselves without having to license the original source material. They are trying to do an end run around copyright to get away with it.

Sounds to me like the licensing option would have been the correct approach here. Too bad the authors didn't pursue that first.

I'm not sure they could've gotten permission. The Seuss estate is pretty notorious for being protective of their IP. They've licensed it to a number of entities... that can afford up front payments and have the market power to generate substantial royalties. Random dudes on Kickstarter doesn't fit that profile very well.

That aside, since this is a mashup of about 50% Seuss and 50% Star Trek IP, relying on a license would seem to concede they need a license for the Star Trek IP as well. And there's no way they were getting that even if they asked. CBS is hostile toward fan IP.

Wait what? CBS is hostile towards fan IP? Then how the hell does Renegades exist, or even the new fan made YouTube series that continues the original 5 year mission? CBS isn’t hostile to fan IP, they are hostile towards people using it to make themselves money and bootstrap their business with it, especially when that business is a competitor. That is what is happening in this case and what happened in the Anaxar case. These aren’t fans making new IP, and while I don’t know about DSE I highly doubt CBS would have had a problem with it if they had just published it to the internet as a free to download PDF given their previous response on fan creations. There is a ton of Star Trek fan made IP on the internet and CBS has stood strongly behind them in support, so long as it isn’t used to enrich the creators of the new IP.

It is easy to say ‘these are just fans making this’ if that was true they would have made it anyways without the Kickstarter, that is kind of the definition of a fan. Instead they went and tried to make money off of their fandom which is where the problem lies.

Printing costs money, etc. Are we sure they were going to make a profit? The article doesn't seem to indicate that.

Sounds to me like the licensing option would have been the correct approach here. Too bad the authors didn't pursue that first.

I'm not sure they could've gotten permission. The Seuss estate is pretty notorious for being protective of their IP. They've licensed it to a number of entities... that can afford up front payments and have the market power to generate substantial royalties. Random dudes on Kickstarter doesn't fit that profile very well.

That aside, since this is a mashup of about 50% Seuss and 50% Star Trek IP, relying on a license would seem to concede they need a license for the Star Trek IP as well. And there's no way they were getting that even if they asked. CBS is hostile toward fan IP.

Wait what? CBS is hostile towards fan IP? Then how the hell does Renegades exist, or even the new fan made YouTube series that continues the original 5 year mission? CBS isn’t hostile to fan IP, they are hostile towards people using it to make themselves money and bootstrap their business with it, especially when that business is a competitor. That is what is happening in this case and what happened in the Anaxar case. These aren’t fans making new IP, and while I don’t know about DSE I highly doubt CBS would have had a problem with it if they had just published it to the internet as a free to download PDF given their previous response on fan creations. There is a ton of Star Trek fan made IP on the internet and CBS has stood strongly behind them in support, so long as it isn’t used to enrich the creators of the new IP.

It is easy to say ‘these are just fans making this’ if that was true they would have made it anyways without the Kickstarter, that is kind of the definition of a fan. Instead they went and tried to make money off of their fandom which is where the problem lies.

Printing costs money, etc. Are we sure they were going to make a profit? The article doesn't seem to indicate that.

If it is fan based there is no need to print it. Just put it up as a pdf. There no money needed, no need to incorporate or anything of the sort. Listen fans all the time publish things and aren’t smacked down because they aren’t going to Kickstarter or others to get money. They just do it and put it up for free consumption on the net.

Comic mashup's not fair use."Will not permit!" cried Dr. Suess."I will not let them, on the net.""I do not care; my terms are set.""I will not read this book on Trek.""All in all, it's mindless dreck."

The general purpose of "fair use" is to balance three competing goals: (1) incentivizing the creation of new works by guaranteeing the ability to market your own work without others profiting off your labor, (2) incentivizing the creation of new works that may be inspired by existing works, but are mostly the labor of the new creator and not the original work creator, and (3) permitting free speech including criticism of commercial works.

1) (nit-pick) I think you meant "the general purpose of "copyright"".

2) And that purpose is to incentivize, the chosen means (not purpose) is to grant a limited monopoly.

3) but the real tricky part is defining the scope of "without others profiting off your labor". This often tends to be interpreted (by copyright holders) rather more broadly than is justified.

The question here is whether the defendant is essentially (in moral terms) "stealing" the work of Dr Seuss, or "building off of it". What are the limits of the special privilege and control granted to a copyright holder?